Prgomelja v Penrith City Council

[2007] NSWLEC 872

Land and Environment Court

of New South Wales

CITATION:	Prgomelja v Penrith City Council [2007] NSWLEC 872
PARTIES:	APPLICANT Slavoljub Prgomelja RESPONDENT Penrith City Council
FILE NUMBER(S):	10926 of 2007
CORAM:	Tuor C
KEY ISSUES:	Development Application :- subdivision SEPP 1 objection to minimum allotment size objective of the standard
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Sydney Regional Environmental Plan No 13 Mulgoa Valley
DATES OF HEARING:	27/11/2007
EX TEMPORE JUDGMENT DATE:	27 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms J Reid, solicitor of Pike Pike and Fenwick RESPONDENT Mr M Bullivant, solicitor of Penrith City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

27 November 2007

10926 of 2007 Slavoljub Prgomelja v Penrith City Council

JUDGMENT

1 This is an appeal against the deemed refusal by Penrith City Council (the council) of a development application (06/1539) for a Torrens title subdivision into 2 lots of Lot 577 DP873824 at Park River Close, Mulgoa (the site).

2 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

3 The existing lot is 5.161ha. The proposed subdivision will create two lots being lot 100 which has an area of 2.44ha and lot 101 which has an area of 2.73ha.

4 The site is identified as Zone 1 Rural Conservation under Sydney Regional Environmental Plan No 13 - Mulgoa Valley (REP 13). The proposal is permissible with consent.

5 Cl 13 of REP 13 relates to subdivision and provides:

(1) ….

(2) Subdivision of land within Zone No 1 may be carried out with development consent, but that consent shall not be given unless:
(a) each allotment proposed to be created is sufficiently large to enable on-site disposal of waste water and sewage without affecting streams and adjacent land to the satisfaction of the Water Board, or
(b) consent for a building could be granted pursuant to clause 12 on each allotment proposed to be created.
(3) In order to maintain a low density of rural settlement, to protect the visual and scenic amenity of Mulgoa Valley, and to prevent fragmentation of inherently productive agricultural and environmentally sensitive land, the consent authority shall not grant consent to an application for subdivision of land within Zone No 1:
(a) ……
(b) being other land, if the allotments created will be less than 10 hectares in area.

6 The proposed subdivision does not meet the 10ha minimum allotment size and an objection under State Environmental Planning Policy No 1 (SEPP 1) is required. As the variation to the standard exceeds 10% the concurrence of the Department of Planning is required prior to consent being granted. The Department has refused its concurrence. While it accepts that the proposal meets the objectives, it is concerned that approval of the application would set a precedent for other applications. There are 23 lots near the site that are greater than 3 ha, some of which are substantial in size and suitable for agricultural purposes and would potentially be subdivided if this application is approved.

7 Mr R McGuiness, town planner for the applicant has prepared a SEPP 1 objection which concludes that compliance with the standard is unreasonable and unnecessary in the circumstances of the case.

8 Both Mr McGuiness and Mr Stimson, the council planner, agreed that the requirements of cl 13(2) and the purpose of the standard in cl 13(3) had been met.

9 I accept the proposal meets the objectives of the standard and the SEPP 1 objection is well founded for the following reasons:

• The site is not within the visual catchment of Mulgoa Valley, which the experts agreed is focussed around Mulgoa Road. It is not highly visible, except from the adjoining sites.
• The site is already below 10 ha and is located amongst other sites that are below the 10ha minimum allotment size.
• The site is not used as agricultural land nor, due to its existing size, is it capable of being productive agricultural land.
• The proposed subdivision is of sufficient size to enable on site disposal of water and sewage.
• There is sufficient land that is relatively flat and cleared to provide a building platform without requiring the removal of trees.
• There are no likely bushfire issues with future development of the site.

10 The proposed subdivision will therefore not impact on the visual and scenic amenity of Mulgoa Valley, productive agricultural or environmentally sensitive land.

11 In relation to the Department’s concern about precedent, it sought not to be represented at the hearing but its main issue appears to relate to the loss of productive agricultural land in the area. The evidence before me is that the site is not productive agricultural land. Its subdivision would not be a precedent for other subdivision applications. Future applications for other sites would need to considered on their merits and assessed against the purpose of the standard.

12 The court orders that:

1. The appeal is upheld.

2. Development application (06/1539) for Torrens Title subdivision into two (2) lots of lot 577 DP 873824 at Park River Close, Mulgoa, is approved subject to the conditions in Annexure A

3. The Exhibits, except Exhibit B, may be returned.

___________________

Annelise Tuor
Commissioner of the Court